Citation Nr: 1756952 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-22 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an initial compensable rating for right inguinal hernia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1979 to February 1985, from October 2001 to October 2003, and from December 2004 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was remanded for additional development in October 2016. The Veteran has also appealed the issue of entitlement to increased rating for asthma, bilateral dry eyes, and a corneal scar of the left eye. He is currently awaiting a personal hearing before the Board to address these issues. The issues of entitlement to service connection for a right testicle disorder and a ventral hernia have been raised by the record by statements at the July 2016 hearing and upon findings at a February 2017 VA examination, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The evidence demonstrates the Veteran's service-connected right inguinal hernia is manifested by no more than a small, reducible hernia without true hernia protrusion and that has not been operated. CONCLUSION OF LAW The criteria for an initial compensable rating for right inguinal hernia have not been met. 38 U.S.C. § 1155 (2012), 38 C.F.R. § 4.115, Diagnostic Code 7338 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The matter was most recently Remanded in October 2016 for the purpose of obtaining updated treatment records and affording the Veteran a new examination to assess the current severity of his claimed disability. Both actions were accomplished. There was substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). VA regulations provide ratings for inguinal hernia that are small, reducible, or without true hernia protrusion or not operated, but remediable (0 percent); that are postoperative recurrent, readily reducible and well supported by truss or belt (10 percent); that are small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible (30 percent); or that are large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable (60 percent). It is noted that a 10 percent rating is to be added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. 38 C.F.R. § 4.114, Diagnostic Code 7338 (2017). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2017). The pertinent evidence of record shows service connection is established for a right inguinal hernia and that a noncompensable rating was assigned effective from May 2006. The Veteran contends that a compensable rating is warranted for his right inguinal hernia. In statements and testimony provided in support of his claim he reported that he had been told that he should have surgery for the hernia, but that no surgery had been performed. He attributed symptoms including lower abdominal pain and right testicle enlargement and pain to his hernia. VA general medical examination in October 2004 noted the Veteran reported that he had been informed during active service that he had a small right inguinal hernia that was exacerbated by lifting weights. The examiner reported that no hernia was palpated. No related diagnosis was provided. VA general medical examination in April 2009 revealed no present hernia. It was noted that records showed that surgery had been recommended for a right inguinal hernia, but had not been performed. VA treatment records include a February 2015 report noting that no hernias were detected upon examination. A February 2017 VA hernia examination included a diagnosis of right inguinal hernia and noted a date of diagnosis in 2006. He reported having swelling and right inguinal/abdominal pain two to three times per month. The examiner noted that there was no true protrusion of the right inguinal hernia, that there was an indication for a supporting belt, and that the right inguinal hernia could be well supported by a truss or belt. It was noted that the Veteran's right inguinal hernia was not palpated on examination and that he was advised to follow up with his primary care provided to evaluate his frequent symptoms of testicular pain. The Veteran's service-connected right inguinal hernia is manifested by no more than a small, reducible hernia without true hernia protrusion and that has not been operated. It is true that the examiner noted that the Veteran might enjoy some benefit from the use of a supporting belt. Such symptomatology is contemplated in the presently assigned non-compensable rating. The VA examination findings in this case are found to be persuasive. Therefore, entitlement to a compensable rating is not warranted. The Board acknowledges that the Veteran is competent to report observable symptoms, e.g. pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to attribute pain to a specific diagnosis. Such competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim for a higher schedular rating. The Veteran has not raised any claims for an extraschedular rating and the evidence does not present any exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). No additional action as to this matter is required. ORDER Entitlement to an initial compensable rating for right inguinal hernia is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs